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Introduction
Part I.- The authority of
the Secretary of State to intercept communications
Part II.-Purpose, use and
extent of the power of interception
1. Purpose
2. The Marrinan Case
3. Use and Result ...
4. Members of
Parliament...
5. Unauthorised
tapping
Part III .-Suggested future
use of the power of interception
Summary of Conclusions and
Recommendations
Reservation by Mr. P. C.
Gordon Walker
Appendix I
Appendix II
To the Right Honourable
Harold Macmillan, M.P.
We, the undersigned Privy Councillors, having been appointed “to consider and report upon the exercise by the Secretary of State of the executive power to intercept communications and, in particular, under what authority, to what extent and for what purposes this power has been exercised and to what use information so obtained has been put; and to recommend whether, how and subject to what safeguards, this power should be exercised and in what circumstances information obtained by such means should be properly used or disclosed,” submit the following Report.
2. We were appointed on
29th June, 1957, and we held our first meeting in private on 2nd July. We held
16 further meetings for the purposes of discussion and 12 meetings for the
hearing of oral evidence.
3. We heard evidence from
all the Secretaries of State for the Home Department who have held office since
1939, the Permanent Under-Secretary of State at the Home Office, and the
officers in charge of those authorities that use interception of communications
as part of their work.
4. We received much
assistance on the law from the Lord Chancellor, the Attorney-General, Sir Edwin
Herbert. and others. Sir Hartley Shawcross gave evidence about the Marrinan
case. We also received a number of valuable memoranda. We called for records
and files selected at random, and examined them.
5. We have confined our
detailed investigations to the interception of communications over the last
twenty years - that is to say, to the period from 1937 to 1957. This period covers
pre-war and post-war practice. and the practice under both the Administrations
that have held office since the war .
6. We have looked into the
practice and procedure of a number of foreign countries, Commonwealth countries
and Colonial Territories.
7. Following the example of
the Secret Committee of both Houses of Parliament appointed in 1844 to consider
the same problem that has been referred to us. we decided not to publish the
evidence and so informed those who gave evidence before us.
8. We set out our
conclusions and recommendations at length in the pages that follow. The gist of
our Report may be thus summarised: -
(1) The origin of the power to intercept communications
can only be surmised. but the power has been exercised from very early times; and
has been recognised as a lawful power by a succession of statutes covering the
last 200 years or more.
(2) There is some difference of view on the authority to
intercept telephone messages. On one view the power is identical with the power
to open letters and rests on the ancient power to intercept communications.
Another view is that the power rests on a comparatively modern statute. We
discuss these views fully in our Report. (Paragraphs 9-52.).
(3) The power to intercept communications is exercised for
the prevention and detection of serious crime and for the preservation of the
safety of the State.
(4) The power is now almost exclusively exercised by the
Metropolitan Police. the Board of Customs and Excise and the Security Service.
II is used with the greatest care and circumspection, under the strictest ,
rules and safeguards. and never without the personal considered approval of the
Secretary of State. (Paragraphs 62-90.)
(5) The use of the power has been effective in detecting
major criminals and preventing injury to national security. (Paragraphs 107-
113.)
(6) The exercise of the power in these limited spheres
should be allowed to continue under the same strict rules and supervision and
in the special circumstances we have set out. The criminal and the wrongdoer
should not be allowed to use services provided by the State for wrongful
purposes quite unimpeded, and the Police, the Customs, and the Security Service
ought not to be deprived of an effective weapon in their efforts to preserve
and maintain order for the benefit of the community. (Paragraphs 132-152.)
(7) The interference with the privacy of the ordinary
law-abiding citizen or with his individual liberty is infinitesimal, and only
arises as an inevitable incident of intercepting the communications of some
wrongdoer. It has produced no harmful consequences.
(8) Mr. Gordon Walker has reservations to sub-paragraphs (6) and (7) which he sets out in a separate Note of his own. (Paragraphs 170-179.)
PART I
THE AUTHORITY OF
THE SECRETARY OF STATE TO INTERCEPT COMMUNICATIONS
9. The origin of the
authority of the Executive to intercept communications is obscure, and it is
not surprising that conflicting views about the source of the power have been
placed before us. The first public reference to the warrant of the Secretary of
State authorising the opening of letters is in the Proclamation of May 25th,
1663, which forbade the opening of any letters or packets by anybody, except by
the immediate warrant of the Principal Secretary of State. But long before this
date the practice of opening letters had been followed.
10. It is a singular
circumstance that the source of the power has never been the subject of
judicial pronouncement, and the text-book writers have not discussed it in any
fullness. In the fourth edition of Anson's Law and Custom of the Constitution,
Vol. II, Part II, for example, the subject is thus dealt with: -
“The right and the duty, if occasion requires, of detaining and opening letters in the Post Office rests in Great Britain upon the Home Secretary in Northern Ireland upon the Governor. This `power, which extends to telegraphic communications, is occasionally, though not frequently, used….and is extended to telegrams….”
11. The existence of the
power from early times has frequently been acknowledged; its exercise has been
publicly known; and the manner of its exercise has been the subject of public
agitation from time to time, and has been made the subject of debate in the
House of Commons and the House of Lords. In the year 1844, a great agitation
arose in the country, because the Secretary of State, Sir James Graham, had
issued a warrant to open the letters of Joseph Mazzini; and after debates in
both Houses of Parliament. two Secret Committees were set up, one of the House
of Commons and one of the House of Lords. Both Committees were asked to inquire
into the state of the law in respect of the detaining and opening of letters at
the General Post Office. It is significant that both Committees avoided any
discussion of the source of the authority upon which the Secretary of State
exercised his power, and were content to recognise the existence of the power
to intercept communications, and to rely upon the various statutes which refer
to the existence of the power. This is significant because in the debates which
preceded the setting up of the Committees, the origin of the power had been
discussed. In the House of Lords, Lord Campbell, who was at that time a member
of the Judicial Committee of the Privy Council: and afterwards was to be Lord
Chief Justice and Lord Chancellor, discussed the question, and in his
Autobiography he says :-
“In the debates which
arose this session upon the practice of opening letters at the Post Office
under a warrant from the Secretary of State, I contended that it was neither
authorised by common law nor statute, although the Secretary of State, like any
other magistrate, or indeed any private individual, may seize and detain
documents which constitute evidence of the commission of a crime.”
12. On the question of law,
the Committee of the House of Commons reported:
“The inquiry,
therefore. what the state of the law now is respecting such detention and
opening, is reduced to the inquiry what the state of the law was, respecting
the same matter immediately upon the passing of the Statute of Anne .... the
law on the matter In question was the same in 1711 that it is in 1844.”
13. They also said on the
point of law:-
“In preference to
discussing the purely legal question, how far the Statute of Anne. in
recognising the practice, on the part of the Secretaries of State of issuing
Warrants to open Letters, rendered it lawful for the Secretaries of State to
issue such Warrants, Your Committee propose, so far as they have materials for
that purpose, to give the history of this practice, prior and subsequent to the
passing of that Statute: these materials being such as ought not to be
overlooked in investigating the grounds on which the exercise of this authority
rests.”
14. Some further extracts
from the history the Committee set out may be given: -
(a) “It does not
appear at what precise period the Crown undertook to be the regular carrier of
Letters for its subjects. The Crown doubtless, found it necessary, at a very
early period, to the exercise of the functions of Sovereignty, to be able to
convey with speed and security its own despatches from one part of the realm to
another, and from and to parts beyond the seas; and for that purpose it
appointed certain messengers or runners, called the Posts. These Posts were
also employed for the personal convenience of the Sovereign, and the
individuals composing the Royal Court. In course of time, a Master of the Posts
was appointed, and the first of these on record was Brian Tuke, Esq. ….who held
that office in 1516….”
(b) “The practice
probably began at an early period and afterwards grew into a regular custom. of
allowing private persons to avail themselves of the King's Posts for
transmitting their correspondence. This probably became a perquisite to the
Postmasters, while, at the same time, it gave to the Ministers of State the
power of narrowly inspecting the whole of the written communications of the
country.”
15. The Committee of the
House of Lords had two former Lord Chancellors as members, Lord Brougham and
Lord Cottenham, and in their Report the Committee said: -
“The Committee have
not thought it necessary to attempt to define the Grounds upon which the
Government has exercised the Power afforded by public Conveyance of Letters of
obtaining such Information, as might be thought beneficial for the public
Service; it seems sufficient for the present Purpose to state, that the
Exercise of this Power can be traced from the earliest Institutions in this
Country for the Conveyance of Letters from Orders in Council of the 22nd of
November, 1626 and 24th of February, 1627…. In 1657, upon the first
Establishment of a regular Post Office, it was stated in the Ordinance to be
the best Means to discover and prevent any dangerous and wicked Designs against
the Commonwealth .... The Power, therefore, appears to have been exercised from
the earliest Period, and to have been recognised by several Acts of Parliament.
This appears to the Committee to be the State of the Law in respect to the
detaining and opening of Letters at the Post Office and they do not find any
other Authority for such detaining or opening.”
16. The situation with
regard to the opening and detaining of letters and postal packets is
substantially the same in 1957 as it was in 1844, for section 58 (1) of the
Post Office Act of 1953, which is the Act now governing the opening and
detaining of letters, is substantially in the same terms as the earlier
statutes of 1908, 1837 and 1710.
17. We have made these
quotations from the two important Reports of 1844, because it is clear that not
only were questions of law debated in both Houses of Parliament, but both
Committees considered the questions of law with great care. Both Committees
recognised that the Executive had exercised the power of opening letters over a
very long period of time, and neither Committee ever suggested or concluded
that the exercise of the power was in any way unlawful or did they suggest in
terms that the exercise of the power was the exercise of a prerogative fight of
the Crown. They leaned heavily upon the Post Office statutes, although none of
the statutes contain clauses conferring the power to intercept communications,
but recognise the power as an existing power which it is lawful to exercise.
18. In view of the
conflicting opinions that have been put before us on the source of the
Secretary of State's power to intercept communications, we think it best to set
out briefly the arguments as they were presented to us.
19. The first submission
made was that the power of the Secretary of State to issue his warrant for the
interception and opening of letters was in exercise of a prerogative right of
the Crown. The Royal Prerogative has been defined as comprehending all the
special liberties, privileges and powers and royalties allowed by common law.
It is created and limited by the common law. Blackstone defined the Royal
Prerogative in these words -
“Prerogative can only
be applied to those rights and capacities which the King enjoys alone in
contradistinction to others and not to those which he enjoys in common with any
of his subjects.”
20. It was contended before
us that the procedure of opening letters so far as it was known and set out in
the Secret Committees' Reports of 1844, was such that in all respects it was proper
to describe it as a prerogative right. The nature of that right was said to be
a right to intercept communications. It is true that for some centuries,
communications in fact were confined to letters and postal packets, but as
science invented new modes of communication, such as the telegraph and the
telephone, and they came into general use, it was submitted that the
prerogative power to intercept communications was wide enough to include not
only letters and postal packets, but every subsequent means of communication
that became known and was used. The prerogative right, therefore, to intercept
communications applied now to letters and telegrams and telephonic
communications alike.
21. It would appear that
the view entertained by the Home Office has always been that the power
exercised by the Secretary of State is not expressly conferred by statute, but
that the statutes relating to the Post Office recognise the existence of the
power as a lawful power for the purpose of making it clear that no offence is
committed by a person who acts in obedience to a warrant of the Secretary of
State issued by him in the exercise of that power. On this view the power
exercised from the very earliest times is a prerogative power to intercept,
examine, and disclose for certain purposes connected with the safety of the
State or the preservation of public order, any messages carried by the Crown;
and this Prerogative attached to the new methods of carrying messages that were
undertaken by the Crown in the nineteenth century by means of the telegraph and
the telephone. It was conceded that no new Prerogatives can be created, and the
prerogative power to intercept a telephone message must therefore be the same
prerogative power which authorises the interception of letters.
22. In connection with this
argument the principle must be borne in mind that, where the legislature has
intervened and covered by statute. the ground covered by the Prerogative, the
statute thereafter rules. But this doctrine does not seem applicable here,
since there has been no intervention of this character by the legislature.
23. The opponents of the view that the power to intercept is a prerogative power emphasise the fact that no constitutional writer when dealing with the Royal Prerogative, mentions this particular power as being a prerogative power. In Chitty's Prerogatives of the Crown published in 1820, the learned author states that he has attempted “to present a comprehensive and connected, yet compressed and logical, view of every prerogative and corresponding right of the subject “; but nowhere is any reference made to a prerogative power of detaining and opening communications. Reliance is also placed on the doctrine laid down by Lord Camden in Entick v. Carrington, 19 State Trials 1030. In the year 1762, the Secretary of State issued a warrant directing certain persons to search for John Entick, the author of certain numbers of “The Monitor or British Freeholder” and to seize him, “together with his books and papers,” and to bring them to the Secretary of State. Certain messengers, empowered by the warrant, seized Mr. Entick in his house, and seized his papers. Entick brought an action in trespass against the messengers for seizure of his papers. The case was tried before the Lord Chief Justice and a jury, and the jury returned a special verdict, which is very lengthy, and is set out in the report of the case. If the Defendants were liable, the fury assessed the damages at £300. This special verdict was twice argued in the Court of Common Pleas at great length, and with much learning; and finally in 1765 Lord Camden delivered the elaborate judgment which was the judgment of the Court. Many questions were argued and decided, but the main question was the legality of the general warrant. Lord Camden declared that -the practice of issuing general warrants was illegal and unconstitutional. The jury found by their special verdict that the practice of issuing general warrants had been in existence for many years, but Lord Camden nevertheless denied their legality.
24. It was suggested that
the arguments used to support the legality of general warrants before Lord
Camden and his fellow judges were the same arguments used to support the
prerogative power exercised by the Secretary of State to intercept
communications, namely that no court of justice had ever declared the powers to
be illegal, that the powers were essential to government, and the only means of
quieting clamours and seditions. Lord Camden said -
“With respect to the
practice itself, if it goes no higher, every lawyer will tell you it is much
too modern to be evidence of the common law; and if it be added that these
warrants ought to acquire some strength by the silence of those courts which
have heard them read so often upon returns without censure or animadversion, I
am able to borrow my answer to that pretence from the Court of King's Bench,
which lately declared with great unanimity in the case of General Warrants that
as no objection was taken to them on the returns and the matter passed sub
silentio, the precedents were of no weight. I most heartily concur in that
opinion....”
“To search, seize, and
carry away all the papers of the subject on the first warrant: that such a
right should have existed from the time whereof the memory of man runneth not
to the contrary, and never yet have found a place in any book of law; is
incredible. But if so strange a thing could be supposed, I do not see how we
could declare the law upon such evidence.”
“If it is law it will
be found in our books. If it is not to be found there it is not law.”
25. It was submitted in
reply that there is a distinction to be drawn between the general warrants
condemned by Lord Camden, and the limited, strictly governed use of the
Secretary of State's warrant into the exercise of which we have been enquiring;
and in this connexion we emphasise once more the exact nature of the procedure
we set out in Part II of this Report.
26. It was further pointed out that the provisions of section 9 (I) of the Crown Proceedings Act of 1947 giving certain immunities to the Crown are inconsistent with the existence of a prerogative power for the section provides that “…no proceedings in tort shall lie against the Crown for anything done or omitted to be done in relation to a postal packet by any person while employed as a servant or agent of the Crown, or for anything done or omitted to be done in relation to a telephonic communication by any person whilst so employed; nor shall any officer of the Crown be subject, save at the suit of the Crown, to any civil liability for any of the matters aforesaid.” It may very well be that in 1947 the question of intercepting a telephone message was not in contemplation, and therefore no reference was made to a prerogative power, but the words of the section are very wide in their terms.
27. An alternative view was
put before us which differed in some respects from the assertion of the
prerogative right, but scarcely differed in substance. It was submitted that
the origin of the power of the Secretary of State to intercept communications
lay in a common law right which was not a part of the Prerogative, but which
derived from an inherent power in the Crown to protect the realm against the
misuse of postal facilities by ill-disposed persons. This common law right, it
was said, continues to exist and is recognised in the Post Office statutes. No
statute has enacted the power in express terms, but in addition to recognising
and acknowledging the power, the statutes have indicated certain ways in which
the power should be exercised, as for example, by the issue of a warrant by the
Secretary of State authorising the interception to be made.
28. No support for this
view is to be found jn any judicial pronouncement, or in any legal text book.
Indeed in Chitty's Royal Prerogative in England published in 1830, the learned
author says at page 66
“In modern times the
prerogative of the Crown has been so strictly defined by law…that though the
old doctrines of absolute sovereignty and transcendent domination still
disfigure our law books, they are little heard of elsewhere. Occasionally
however it happens that in Parliamentary discussions, assertions are hazarded
of latent prerogatives in the Crown which are supposed to be inherent in the
very nature of sovereignty. That such pretensions are unfounded it is not
difficult to make out.”
29. It was said before us
that this common law power which was clearly an ancient power and derived from the
actions of the monarchy when seeking to safeguard the realm, was a power wide
enough to cover every form of communication which might come into being at any
time. This second view is difficult to distinguish from the first view save
that the use of the word “Prerogative” is avoided.
30. A third argument was
put before us, which we summarise in paragraphs 31-37, that from the earliest
times the power to intercept and open letters had been in existence. Throughout
many centuries the practice had continued. How it arose can only be conjectured
because historical records are wanting, but that the power existed and was used
permits of no doubt whatever.
31. The Ordinance of 1657
recited in the Preamble that one of the advantages of erecting and settling one
General Post Office was that it 'c was the best means to discover and prevent
many dangerous and wicked designs which have been and are daily contrived
against the peace and welfare of the Commonwealth, the intelligence whereof
cannot well be communicated but by letter of escript.” One of the principal
objects of that Ordinance, it was suggested, was to prohibit persons other than
the Postmaster-General from conveying letters, and the public reference to
“discovering many dangerous and wicked designs “would seem to throw some light
on the probable origin of the power. The Act of Parliament of 1660 followed the
Ordinance of 1657 and agreed mutatis mutandis with its content. The
Proclamation of 1663 prohibiting the opening of letters save by the warrant of
the Secretary of State would seem to imply that it was not unlawful to open a
letter before that Proclamation, otherwise the prohibition would have been
superfluous.
The object of the
legislation of 1657 and 1660 was to create a monopoly for the Crown and to
ensure that the letters would be carried by persons appointed or licensed by
the Crown, with the object of enabling the Crown to inspect the contents of the
letters carried. It was also pointed out that in none of these public
declarations was there any assertion of the Royal Prerogative. The origin of
the power to intercept letters, on this view, was the result of the creation of
a monopoly, created and developed for this among other purposes; and the
opening and detaining of letters by the Crown took place not because of any
prerogative right, but upon the footing that those who entrusted their letters
to the Posts would render them open to inspection at the wish of the Crown. It
is of course understandable how this power should be referred to as a Prerogative,
because the Crown alone could exercise the power; but, however the power is
described, it was said that from the 17th century at least it cannot be doubted
that the power to open letters has been lawfully exercised by the Crown.
32. In 1710, an Act was
passed “for establishing a General Post Office for all Her Majesty's Dominions,
etc.”and again it was enacted by section 40 “that no person…shall presume to
open detain, or delay…any…Letter after same is or shall be delivered into the
General or other Post Office…except by an express Warrant in Writing under the
Hand of one of the Principal Secretaries of State for every such opening,
detaining, or delaying…”
33. Section 58 (I) of the
Post Office Act, 1953 provides-
“If any officer of the
Post Office, contrary to his duty, opens…any postal packet in course of
transmission by post, or wilfully detains or delays…any such postal packet, he
shall be guilty of a misdemeanour….Provided that nothing in this section shall
extend to the opening, detaining or delaying of a postal packet returned for
want of a true direction, or returned by reason that the person to whom it is
directed has refused it, or has refused or neglected to pay the postage
thereof, or that the packet cannot for any other reason be delivered, or to the
opening, detaining or delaying of a postal packet under the authority of this
Act or in obedience to an express warrant in writing under the hand of a
Secretary of State.”
34. Postal packet is
defined in section 87 (1) as meaning-
“A letter, postcard, reply postcard, newspaper, printed packet, sample packet, or parcel, and every packet or article transmissible by post, and includes a telegram.”
35. Section 58 of the Act
of 1953 reproduces section 56 of the Post Office Act, 1908 which reproduces
section 25 of the Post Office (Offences) Act. 1837 which in return re-enacted
without material amendment section 40 of the Post Office (Revenue) Act of 1710.
36. The legal position
since 1710 and now is that an officer of the Post Office who opens. delays or
detains a postal packet commits an offence unless it is his duty to do so, or
one of the conditions mentioned in the section as justifying his conduct is
satisfied. It is a defence to show that the letter was opened, delayed or
detained on the authority of the Secretary of State's warrant.
37. As telegrams are postal
packets for the purposes of the Post Office Act of 1953, and are telegraphic
messages for the purposes of the Telegraph Act of 1869 by virtue of section 3,
it is an offence for an officer of the Post Office to open delay or detain “a
telegram in course of transmission by post unless it is his duty so to do, or
the opening, &c., is authorised by the warrant of the Secretary of State,
or ii is justified on one or other of the grounds mentioned in section 58 (I)
of the Post Office Act, 1953.
38. We have thought it
right to set out at some length the different Views which were expressed to us
by high legal authorities. We recognise that we have no authority ourselves to
decide between these conflicting views and to declare the Jaw. We have been
impressed by the fact that many Secretaries of State in many Administrations
for many years past have acted upon the view that the power to intercept
communications was in the nature of a prerogative power. It had never been
thought necessary for any statute to confer the right, but all the statutes had
recognised the right as an existing right at the time of their enactment. It
was beyond doubt that the power bad existed independently of the statutes its
precise origin alone remaining in doubt.
39. If the problem
confronting us had merely been concerned with letters, we should have been
inclined to follow the example of the two Secret Committees in 1844 and to say that
there can be no doubt whatever of these things-
(a) The power to intercept letters and postal packets and
to disclose their contents and otherwise to make use of them had been used and
frequently used through many centuries.
(b) Such a power existed and was exercised widely and
publicly known as the debates in the House of Commons and the House of Lords
plainly showed.
(c) At no time had it been suggested with any authority
that the exercise of the power was unlawful.
But we recognise that the
chief controversy which resulted in the setting up of the present committee was
concerned with the interception of telephone messages, and therefore we do not
feel able to leave the matters in question quite as the two Secret Committees
were able to do.
40. The power to intercept
telephone messages has been exercised in this country from time to time since
the introduction of the telephone; and until the year 1937, the Post Office
acted upon the view that the power, which the Crown exercised in intercepting
telephone messages, was a power possessed by any other operator of telephones
and was not contrary to law. No warrants by the Secretary of State were
therefore issued, and any arrangements for the interception of telephone
conversations were made directly between the Security Service or the Po)ice
Authorities and the Director-General of the Post Office.
41. In 1937 the position
was reviewed by the Home Secretary and the Postmaster-General and it was then
decided, as a matter of policy, that it was undesirable that records of
telephone conversations should be made by Post Office servants and disclosed to
the Police or to the Security Service without the authority of the Secretary of
State. Apart from thinking that the former practice was undesirable, the Home
Office was of opinion that the power on which they had acted to intercept
letters and telegrams on the authority of a warrant issued by the Secretary of
State, was wide enough in its nature to include the interception of telephone
messages also. It was accordingly decided to act on this view of the law; and
it has since been the practice of the Post Office to intercept telephone
conversations only on the express warrant of the Secretary of State. that is,
upon the authority which had already been recognised in the statutes to which
we have referred dealing with letters and telegrams.
42. If it be said that a
prerogative right could not extend to the interception of telephone
conversations. because telephones were undreamt of when the prerogative power
was first taken and exercised, reference should be made to the case of In re a
Petition of Right, 1915 3 K.B. 659 in the Court of Appeal (Cozens-Hardy, M. R..
Pickford and Warrington L.JJ), when Lord Cozens-Hardy said in affirming the
judgement of Avory J .
“If it be said that
the prerogative right cannot extend to an aerodrome because aeroplanes were
unknown in the reign of Richard I., I think that the answer is to be found in
the somewhat analogous case of Mercer v. Denne (1905) 2 Ch. 538, 585, where
this Court held that a customary right to' cutch ' fishing nets was not limited
to materials known in the reign of Richard I., but extended to drying nets with
suitable materials. So the prerogative applies to what is reasonably necessary
for preventing and repelling invasion at the present time, regard being had to
the invention of gunpowder and the use of aeroplanes in warfare.”
Warrington L.J. said
“The circumstances
under which the power may be exercised and the particular acts which may be done
in the exercise thereof must of necessity vary with the times and the advance
of military science…”
43. The prerogative power
in question in that case was the power to take lands without compensation for
the purposes of the Defence of the Realm, but if in the question we have to
consider, the existence of a prerogative power to intercept all communications
was established, the objection that the telephone was a modern invention would
not defeat the application of the power.
44. But if the view
accepted and followed by the Home Office for many years is rejected, then it
was submitted that the power to intercept telephone messages was governed by
special considerations which were somewhat different from those that govern the
question of letters and telegrams. If there be no prerogative power governing
all communications, and thus including telephonic communications and if there
be no power at common law to the like effect, then the only relevant statutory
reference to be considered, would be section 20 of the Telegraph Act of 1868.
45. The material words of
the section are-
“Any person having official
duties connected with the Post Office or acting on behalf of the
Postmaster-General, who shall, contrary to his duty, disclose or in any way make
known or intercept the contents or any part of the contents of any telegraphic
messages or any message entrusted to the Postmaster-General for the purpose of
transmission, shall in England and in Ireland be guilty of a misdemeanour…and
the Postmaster-General shall make regulations to carry out the intentions of
this section, and to prevent “the improper use of any person in his employment
or acting on his behalf of any knowledge he may acquire of the contents of any
telegraphic message.”
46. No regulations have in fact been made under this section. It is a little difficult to think that the word “intercept” in section 20 of the Act of 1868 contemplated the listening in to telephone conversations for the telephone exchange was only instituted in England in 1879 and then there were only seven or eight subscribers.
47. In the case of the
Attorney-General v. Edison Telephone Company, IB80 6 Q.B.D. p. 244, it was held
that a telephone conversation is a “telegraphic communication” for the purposes
of the Telegraph Acts, though at the time of the decision the question of
listening into or intercepting a telephone message was not being considered.
48. In view of the
decision, however, it was argued that by reason of section 20 of the Telegraph
Act of 1868 it was open to the Postmaster-General to instruct post office
officials and those acting on his behalf to listed in, to record and disclose
telephone conversations, just as he had the power to intercept, disclose and
make known the contents of a telegram. It was also argued that the fact that it
is not now the practice for the Postmaster-General to give any such
instructions except on the authority of the Secretary of State's warrant had no
legal significance.
49. If this argument is
rejected, then it was submitted that, so far as the interception of telephone
messages is concerned, reliance could be placed on the doctrine followed until
1937 that the Post Office was entitled to intercept and that it was not
unlawful to do so, and that in any event the provisions of the Crown
Proceedings Act made the Post Office immune from any legal action for any acts
relating to die telephone.
50. We should not be happy
to feel that so important a power as the power to intercept telephone messages
rested on either of the grounds set out in paragraphs 44-49. We favour the view
that it rests upon the power plainly recognised by the Post Office statutes as
existing before the enactment of the statutes, by whatever name the power is
described.
51. We are therefore of the
opinion that the state of the law might fairly be expressed in this way.
(a) The power to intercept letters has been exercised from
the earliest times, and has been recognised in successive Acts of Parliament.
(b) This power extends to telegrams.
(c) It is difficult to resist the view that if there is a
lawful power to intercept communications in the form of letters and telegrams,
then it is wide enough to cover telephone communications as well.
52. If, however, it should
be thought that the power to intercept telephone messages was left in an
uncertain state that was undesirable, it would be for Parliament to consider
what steps ought to be taken to remove all uncertainty if the practice is to
continue. So far as letters and telegrams are concerned, the provisions of the Post
Office Act of 1953 appear to have worked in practice without any difficulty. If
it were thought necessary, a suitable amendment to that section of the Act of
1953 would remove doubts whether telephonic communications were in the same
position as letters and telegrams.
PART II
PURPOSE, USE AND
EXTENT OF THE POWER OF INTERCEPTION
I. Purpose
53. We were further
instructed under our terms of reference “to consider and report upon the
exercise by the Secretary of State of the executive power to intercept
communications and, in particular, ... to what extent and for what purposes
this power has been exercised and to what use information so obtained has been
put.”
54. The exercise by the
Secretary of State of the executive power to intercept communications is by
warrant under his own hand (and in the case of Scotland under the hand of the
Secretary of State for Scotland). If either of these Secretaries of State were
ill or absent the power would be exercised on his behalf by another Secretary
of State: but this has very rarely happened,
55. It is to-day the
invariable practice that the interception of communications is carried out only
on the authority of one or other of these two Secretaries of State (see
paragraph 41 above).
56. The warrant of the
Secretary of State sets out the name and address or telephone number of the
persons whose communications are to be intercepted. On occasion, a single
warrant has been issued in the past to cover a number of names. We think this
practice is undesirable. In our opinion each warrant should in future specify
the name and address or telephone number of the person who is the subject of
the warrant.
57. The Secretary of State
has to satisfy himself on the facts of each particular case that it is proper
to issue his warrant. In practice the principle on which the Secretary of State
acts is that the purposes for which communications may be intercepted must be
either for the detection of serious crime or for the safeguarding of the
security bf the State.
58. We discuss first the
procedure in relation to crime. Changing circumstances during the past twenty
years have made some acts serious offences that were not previously so
regarded. For instance, during a.
for a period after the last war, breaches of food regulations were for a time serious offences. After the war, exchange control was introduced to protect the nation's gold and dollar reserves and attempts to contravene ill provisions are still regarded as serious offences.
59. On the other hand, some
offences which had previously been considered serious enough to justify
warrants for the interception of communications have ceased to be so regarded.
The interception of letters* to
prevent the transmission or illegal lottery material began in 1909 but was
abandoned in November 1953. The main grounds for the decision to cease
interception for this purpose were, we were told, doubts about its efficacy and
the feeling that, owing to the changed public attitude towards lotteries, it
was no longer necessary or appropriate to use this power for this particular
purpose.
60. In the 1930's
considerable numbers of warrants were issued for the interception of letters,
mainly passing to or from places abroad, believed contain obscene and indecent
matter. The number of warrants steadily declined after the war and none has
been issued in the last two and a half years. We were informed that one of the
main reasons for this was not any doubt as to the efficacy of methods of
interception in this case but a growing reluctance to use the expedient of
interception for this particular purpose.
61. The issue of warrants
for the interception of letters in connection with offences under the Dangerous
Drugs Acts began in 1922. After the war the number of warrants sharply declined
and no warrants have been issued since early in 1956. This coincided with a
decline in the traffic in drugs. The Department of the Home Office concerned
with the administration of the Dangerous Drugs Acts and with duties under the
International Narcotics Conventions is of the opinion that it might again
become necessary to intercept letters in the discharge of its statutory and
international obligations.
62. Since the Secretary of
State's discretion is absolute he may issue a warrant for the interception of
communications to any person, authority, agency or Department of State; but in
fact such warrants have been granted to a limited number of authorities. We set
out in Appendix II a list of all die authorities to whom warrants have been
issued over the past twenty years.
63. The great majority of
warrants for interception for the purpose of the detection of crime have been,
and are now granted to the Metropolitan Police and Board of Customs and Excise.
In what we say below about the interception of communications for the detection
of crime, we confine our observations to these two authorities. For the sake of
brevity we sometimes refer to them as the “Police” and the “Customs.”
64. The principles on which
the Home Office acts in deciding whether to grant an application for a warrant
to intercept communications for the detection of crime were first reduced to
writing in letters in similar terms sent to the Metropolitan Police and Customs
in September 1951. These letters were occasioned by a recent increase in the
number of applications and an increase in the number rejected by the Home
Office. It was stated in these letters that the procedure of interception was
“an inherently objectionable one,” that “the power to stop letters and
intercept telephone calls must be used with great caution,” and that it must be
regarded as “an exceptional method.” In particular, three conditions were laid
down both for the Police and for the Customs that must be satisfied before a
warrant could be issued.
These were:
(a) The offence must be
really serious.
(b) Normal methods of
investigation must have been tried and failed, or must from the nature of
things, be unlikely to succeed if tried.
(c) There must be good
reason to think that an interception would result in a conviction.
65. It was indicated in the
letter to the Police that what the Home Office regarded as “serious crime” were
offences for which a man with no previous record could reasonably be expected
to be sentenced to three years' imprisonment, or offences of lesser gravity in which
a large number of people were involved.
66. The type of crime that
the Customs seek to detect is necessarily somewhat different from the violent
crime with which the Metropolitan police is mainly concerned. The definition of
“serious crime” upon which the Home Office acts when considering the issue of
warrants to the Customs is that “the case involves a substantial and continuing
fraud which would seriously damage the revenue or the economy of the country if
it went unchecked.”
67. The arrangements concerning
the issue of warrants to the Security Service are similar, but the objectives
of the Security Service are different from those of the Police or Customs. The
Home Office considers each case. The principles governing the issue of warrants
to the Security Service can be stated in these terms: -
(a) There must be a
major subversive or espionage activity that is likely to injure the national
interest.
(b) The material
likely to be obtained by interception must be of diced use in compiling the
information that is necessary to the Security Service in carrying out the tasks
laid upon it by the State.
68. The same provision applies to the Security Service as to the Customs and Police about the failure of normal means of detection. But less stress is laid on the need to secure convictions, since the Security Service is primarily concerned with safeguarding the State and keeping itself informed about dangers to its security. Besides securing convictions, the Security Service has the duty to keep up to date its information covering espionage and subversion and to inform Ministers and Departments of State about security matters that concern them.
.
69. The Metropolitan
Police, the Customs and Excise and the Security Service have adopted policies
and internal procedures designed to ensure that warrants are sought only when
they satisfy the appropriate conditions laid down by the Home Office. The
request for a warrant can be sent to the Home Office only by the Chief of the
authority concerned or his deputy.
70. All applications for
warrants to intercept communications for the detection of crime are considered
by senior officers in the Criminal Department of the Home Office, who, if they
approve the application, submit it to the Permanent Under-Secretary of State,
who, if he considers that sufficient case has been made out, submits the
application to the Secretary of State for his personal decision. Applications
for warrants sought by the Security Service go in the first place direct to the
Permanent Under-Secretary. All the Secretaries of State who appeared before us
said that they gave close personal consideration to every request for a warrant
submitted to them. If the procedure that has been laid down is faithfully
followed, there are likely to be very few applications that need to be rejected
and this was in fact confirmed by the evidence.
71. Close supervision over
the use of methods of interception is maintained by the Home Office. There is a
quarterly review of outstanding warrants by the Permanent Under-Secretary. At
this review, or earliest if the Home Office thinks that warrants have not been
cancelled after a reasonable period, the authorities concerned are sent for and
asked to make a case for their continuance. Not only are individual warrants
reviewed in this manner but also the number of warrants in operation. We have
already referred to the letters sent by the Home Office in 1951 to the
Metropolitan Police and Customs (above paragraph 64). A further letter was sent
to the Metropolitan Police in April 1956 drawing attention to the increase in
the figures of warrants granted during the previous five years and emphasising
the need to keep applications to a minimum. This led to the adoption by the
Metropolitan Police of a new and more effective system of review which reduced
the average duration of warrants and brought about an increase ii the
proportion of arrests to interceptions.
72. The Customs have a
regular quarterly review of all outstanding warrants individually. A similar
review is undertaken by the Security Service every six months. Since 1956 the
Metropolitan Police has instituted a weekly review every Monday. All these
authorities cancel warrants when they are considered to be of no further use
without waiting for their own regular review of outstanding warrants.
73. The authority
concerned, when an interception is no longer needed, immediately instructs the
Post Office to discontinue the interception. The Customs and Police inform the Home
Office forthwith and ask for the formal cancellation of the warrant. The
Security Service does this only at three-monthly intervals. We should point out
that despite this variation of practice we have found no evidence of
interceptions being kept on longer than was thought necessary for the case in
hand.
74. We feel that the
outstanding warrants should be reviewed more frequently. We therefore recommend
that there should be a regular review not less than once a month both by the
Home Office and by every authority that is granted a warrant to intercept. This
review should be not only of the numbers of warrants outstanding, but of each
particular warrant.
75. We recommend
that warrants should no longer be valid until they are cancelled, but that
their validity should be for a defined period that appears on their face.
Normally this should be for a period no longer than a month and in no case
should it be for a period longer than two months. If an extension of the
validity of the warrant is desired, the reasons for this should be sent to the
Home Office for their consideration before any extension is approved.
76. We recommend
that when a warrant for the interception of communications is cancelled by the
authority to whom it was issued, this cancellation should be forthwith reported
to the Home Office.
77. The Secret Committee of
the House of Lords in its Report of 1844 thought that “a more detailed account
than is already kept of the grounds upon which each warrant is granted would
frequently have the effect of leaving in the Office a grave accusation, without
affording an opportunity of Reply or Defence.”
78. But we are of opinion
that the keeping of full and accurate records is a necessary part of any
procedure to ensure that the use to which interception may be put is
effectively controlled. The Home Office records of warrants issued for the
detection of crime are reasonably full. Each case is separately recorded in a
file. These all contain the ground on which the warrant was issued, a copy of
the warrant itself and the date of its cancellation.
79. We think that in one or
two respects the procedure could be improved. For example we found that in some
cases part of the consultations between the Home Office and the authority
seeking or in possession of a warrant had been oral, and had not been recorded.
In a few cases there was no precise record of the usefulness or otherwise of
the interception. There were no records of the rejection by the Home Office of
applications for warrants.
80. Until 1947 the Home
Office kept a card index of names and addresses showing alphabetically by name
and geographically by area all the warrants issued for security purposes. In
1947, at the suggestion of the Security Service, which was disturbed by the
existence of these records in the Home Office, all of them were destroyed and
no complete records were kept thereafter except for the serial numbers of the
warrants issued. From 1954 the covering minutes were also preserved-we examined
a number of them. These minutes contain very brief summaries of the reasons for
the issue of each warrant.
81. The Metropolitan Police
destroyed all warrants between 1937 and 1946 upon their cancellation, and the
same practice was followed from 19461-953, except that a bare record was kept
of the number of interceptions authorised by the Secretary of State. Detailed
records exist only room 1953. The Security Service also destroyed detailed
records before 1952 although it kept figures of the numbers of warrants issued.
It was not possible to discover the exact number of interceptions in earlier
years, but only the number of warrants issued; the discrepancy between these
two figures would, however, be very small indeed.
82. We wish to emphasise
that none of the matters referred to in the three preceding paragraphs has in
practice affected the strict control of the use of the power to intercept
communications.
83. Arrangements to keep
fuller and more uniform records were made early in 1957 by the Home Office
before our inquiry was announced. We were informed that, since our inquiry
started, the Home Office has worked out an elaborate system for keeping records
on a uniform basis, both for security purposes and for the detection of crime.
84. It is not necessary
that such secret records should be kept in a number of different places. but
they should be preserved in one secure place. We therefore recommend
that full records should be kept in the Home Office showing in each particular
case
(a) The ground on which the warrant is applied for,
(b) A note of any subsequent decisions concerning the
warrant.
(c) A copy of the warrant issued or, alternatively, a note
that the application has been rejected.
(d) A record of the date of the cancellation of the
warrant and the reason therefore.
These records should be preserved
for a reasonable time by the Home Office. Before any warrants or any records
relating to them are destroyed by the authority to whom the warrants were
issued, the Home Office should be consulted.
85. It has been urged in
some quarters that the authority for the issue of warrants for interception
should not be left exclusively in the hands of the Secretary of State. The
chief suggested alternatives that have come to our attention are that the Home
Secretary should be assisted by an Advisory Committee or that warrants should
be issued only on a sworn information before magistrates or a High Court judge.
86. In our opinion, neither
of these proposals would improve matters. If a number of magistrates or judges
had the power to issue such warrants, the control of the use to which methods
of interception can be put would be weaker than under the present system. It
might very well prove easier in practice to obtain warrants. Moreover, it would
be harder to keep and collate records. If an Advisory Committee were set up
this would, at the best, leave things as at present because the ultimate
discretion would still lie with the Secretary of State; at the worst it would
tend to weaken the sense of responsibility of the Secretary of State, and might
lead to a loosening of the principles, the strict maintenance of which is the
chief means of ensuring that interception of communications is limited to the
uses for which it is intended.
87. One exceptional purpose
for which the Secretary of State issues warrants for the interception of
communications is the stopping and returning of letters to the sender. This
power has tong been exercised and was referred to by the Secret Committee of
the House of Commons of 1844 in their Report.
Beyond stating that some
doubt existed how far this could lawfully be done and giving the number of such
warrants issued as 7 over a period of 45 years they made no further comment or
recommendation.
88. In recent years this
power has been exercised somewhat more frequently, but still on a very small
scale. From 1946-57 there were 28 cases in all. We have examined all these
cases in detail and have found that, in all but one or two instances warrants
were issued only on the grounds of a major public interest.
89. It seems to us that the
interception of letters for this purpose falls into quite a distinct category
in that no one suffers any damage if a sender's own letter is returned to him.
There might, however, be administrative difficulties if the interception of
letters at the sender's request became a general practice: We therefore feel
that this power should be exercised only m .cases where in the opinion of the
Secretary of State a clear public interest is involved.
90. As a result of our
inquiry into the purposes for which warrants authorising the interception of
communications are issued. we are satisfied that Secretaries of State and all
the officials and authorities concerned have taken, and continue to take,
scrupulous care to ensure the strict observance of the purposes to which it is
intended by the Home Office that the interception of communications should be
directed and confined.
2. The Marrinan
Case
91. Since it was the
warrant of the then Secretary of State, giving power to intercept the telephone
communications of one. Billy Hill. which gave rise to what is now known as the
Marrinan case. we have felt it right to consider that case with great care so
far as it would appear to be relevant to our inquiry.
92. It has been the settled
policy of the Home Office that, save in the most exceptional cases. information
obtained by the interception of communications should be used only for the
purposes of detection, and not as evidence in a Court or in any other Inquiry.
93. We have listened to the
evidence of the Attorney-General.
Sir Reginald
Manningham-Buller; to Sir Hartley Shawcross, the Chairman of the Bar Council;
and to Viscount Tenby, who was the Secretary of State at the relevant time.
94. It will be convenient
to set out a summary of the principal dates: -
(1) On the '9th October, 1956, reports appeared in certain
newspapers of a case tried at the Central Criminal Court, where it was alleged
that a barrister had obstructed the police when they were acting in the course
of their duty in Dublin.
(2) On the 17th October, Mr.Boulton, the secretary of the
Bar Council, wrote for information to Mr. R. E. Seaton, the counsel who had
prosecuted in the case, and in the meantime Mr. Seaton himself had informed the
Attorney-General of the circumstances.
(3) On the 26th October the Attorney General brought to
the notice of the Bar Council the alleged professional misconduct on the part
of Mr. Marrinan.
(4) On the 20th November Mr. Boulton wrote to Mr. R. L.
Jackson, the Assistant Commissioner of Police in charge of the Criminal
Investigation Department. to ask him whether any information was available
about Mr. Marrinan’s alleged unprofessional conduct.
(5) On the 26th November Mr. Jackson was authorised by the
Home Secretary to show to Sir Hartley Shawcross personally, as Chairman of the
Bar Council, the material obtained in June and July 1956 in the course of the
interception of the telephone line of Billy Hill.
(6) On the 12th December Mr. Boulton, in Sir Hartley
Shawcross's absence abroad, called upon Mr. Jackson. He appears to have been
regarded as the personal representative of Sir Hartley Shawcross rather than
the~ secretary of the Bar Council, for he was shown a copy of the transcript of
the intercepted telephone conversations. Mr. Jackson was not present at that
interview, but on the 18th December he showed the transcript of the intercepted
telephone conversations to Sir Hartley Shawcross, and told him that if he
thought it necessary to show it to other people, Sir Hartley should himself
seek the authority of the Home Secretary so to do. He informed Sir Hartley
Shawcross in some detail of the view of the Police about the character and
activities of Billy Hill. Sir Hartley was informed that Mr. Marrinan was
believed to be acting improperly in concert with Hill in certain matters, well
knowing him to be a criminal, and that Scotland Yard had been interested in the
activities of Mr. Marrinan for some considerable time.
(7) Sir Hartley informed the Assistant Commissioner of
Police that the intercepts of the telephone conversations would be valueless to
him unless he had permission to show them to the members of the Bar Council who
were inquiring into the conduct of Mr. Marrinan, and also to the Benchers of
Lincoln's Inn who might be inquiring into Mr. Marrinan's conduct, and also to
Mr. Marrinan himself.
(8) Accordingly Sir Hartley Shawcross on the same day (the
18th December) wrote to ask for the Home Secretary's authority to disclose the
transcripts of the interceptions to the persons mentioned in (7) above.
(9) On the 20th December, 1956, a letter was sent to Sir
Hartley Shawcross by the Permanent Under-Secretary of State on behalf of the
Home Secretary giving to Sir Hartley the authority he had sought.
95. There can be no doubt
that the actions of Sir Hartley Shawcross and Viscount Tenby were wholly
governed by considerations of the public interest.
96. Apart from the evidence
contained in the telephone intercepts, there was a good deal of additional
evidence in Sir Hartley's possession concerning Mr. Marrinan which in Sir
Hartley's view directly affected the integrity of the Bar and the proper
administration of justice. He was aware that in some other countries the
improper association of members of the legal profession with avowed criminals
was known to exist, and that this association was for the purpose of assisting
criminals in their unlawful activities, and was highly injurious to the proper
administration of justice. It was for these reasons that he decided to ask the
Secretary of State to disclose the telephone intercepts to him and to his
colleagues on the Bar Council, and to permit him to show them to the Benchers
of Lincoln's Inn who were concerned with the professional conduct of Mr.
Marrinan as a member of Lincoln's Inn. and also to Mr. Marrinan himself. He did
this, he insisted before us, because he thought the integrity of the Bar was of
vital importance to the proper administration of justice in this country; and
as Chairman of the Bar Council he felt that a special responsibility lay upon
him to preserve this integrity, and he regarded the administration of justice
as being one of the most important public functions exercised in the State, and
the peculiar care of the Home Office.
&nb